Frank Ronald Clark and Jacqueline D. Martin v. Alfred Litchenburg

Citation: Not availableDocket: 05-18-00278-CV

Court: Court of Appeals of Texas; August 26, 2019; Texas; State Appellate Court

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The Court of Appeals for the Fifth District of Texas affirmed the trial court's decision in a property dispute involving three homeowners in a gated community. Appellants Frank Ronald Clark and Jacqueline D. Martin challenged the enforcement of restrictive covenants favoring appellees Alfred and Kelli Litchenburg, Paul Simon, and Larry Jean Linden. The jury had previously ruled in favor of the appellants on trespass and promissory estoppel claims. However, the trial court's bench trial on remaining claims resulted in the enforcement of the restrictive covenants, which the appellants contested, including their denial of a jury trial and claims of legal deficiencies in the final order.

The properties in question are located in Fairview, Texas, with a shared driveway. The restrictive covenants, established in 1995 by the original builder, govern common areas and require approval from an Architectural Control Committee (ACC) for any construction or improvements. The covenants also stipulate the formation of a Homeowners' Association (HOA) and mandate contributions for communal upkeep. The rights to enforce these covenants, including the recovery of attorney’s fees for violations, were outlined in the covenants and referenced in the property deeds. The appellees initiated legal action against the appellants in March 2016, alleging tortious interference with property use.

Appellees accused Clark and Martin of interfering with their property rights, chiefly by attempting to install a fence and gate across the access easement to the Litchenburgs’ property, which they claimed violated restrictive covenants. They sought damages for tortious interference and requested both a temporary restraining order and a permanent injunction against any such installations. Simon alleged that septic system pipes from 831 Stacy encroached on 833 Stacy and sought an easement for the septic line and landscaping, or alternatively, title through adverse possession. Clark and Martin responded with a general denial, raised affirmative defenses including waiver and ratification, and filed four counterclaims: a quiet title action asserting Simon's lack of ownership rights, a declaratory judgment regarding the enforceability of restrictive covenants, a claim for promissory estoppel related to maintenance expenses, and a trespass claim for the Litchenburgs placing a trash can on their property. On May 31, 2016, the Litchenburgs applied for a restraining order after Clark and Martin allegedly began installing a fence and gate despite the pending lawsuit. The trial court issued a temporary restraining order and later a temporary injunction against further violations of the restrictive covenants. On September 1, 2016, the Litchenburgs filed an amended petition focusing solely on tortious interference due to Clark and Martin’s actions. The case was set for jury trial on January 20, 2017. On that trial day, the Litchenburgs filed a motion in limine to prevent Clark and Martin from discussing the restrictive covenants, arguing that their validity was a legal question for the court.

Clark and Martin contended that there were factual issues regarding the enforcement of restrictive covenants for the jury to decide, particularly concerning waiver due to appellees' acquiescence to neighborhood violations. They also raised issues related to the reasonableness of the alleged violation, tortious interference, and quiet title. Appellees argued that they sought only the enforcement of the covenants and claimed there were no factual questions for the jury. They asserted that Clark and Martin's quiet title claim was moot following a nonsuit of Simon's easement claim. The judge dismissed Clark and Martin's argument about the absence of a homeowners association (HOA), citing HOA bills, and ruled that many issues presented were questions of law rather than fact. As a result, the judge limited the jury trial to Clark and Martin's claims for promissory estoppel and trespass, excluding discussion of the restrictive covenants during voir dire.

The jury favored Clark and Martin on the promissory estoppel claim, awarding them $1,133, while finding that Alfred Litchenburg trespassed but awarding no damages for that claim. Following a bench trial, the judge concluded that the restrictive covenants were not waived and prohibited Clark and Martin from erecting a gate. The court awarded attorney’s fees to appellees under the restrictive covenants’ provisions and later signed a final order, granting Clark and Martin $1,378 against Linden while denying other relief. The order affirmed the validity of the restrictive covenants, mandated the removal of unauthorized structures by Clark and Martin, and established the HOA's legitimacy. Appellees were awarded attorney’s fees of $28,379 against Clark and Martin, with additional conditional fees for appeal. The order did not address the tortious interference claim, and a discrepancy existed regarding the damages awarded compared to the jury's determination. 

Clark and Martin argued the trial court erred by not allowing a jury trial on several claims, including tortious interference, the request for a permanent injunction, attorney’s fees, their defenses, and their counterclaims for declaratory judgment and quiet title.

The denial of a jury trial is detrimental when a case involves material factual disputes. In the reviewed case, the court determined that there were no unresolved material facts submitted to the jury, focusing on the interpretation of restrictive covenants. This interpretation is assessed de novo, adhering to contract construction principles which prioritize the drafters' intent as expressed in the covenant's language. The covenants in question were deemed unambiguous, allowing for a legal review without factual ambiguity.

Clark and Martin contested the denial of a jury trial concerning their claims for a permanent injunction, arguing that the elements of their claim, including the existence of a wrongful act, necessitated a jury's determination. They claimed that the covenants were waived due to long-standing violations and sought to have them declared unenforceable, which they argued involved factual inquiries.

For injunctive relief regarding restrictive covenants, a party typically must demonstrate a wrongful act, imminent harm, irreparable injury, and lack of an adequate legal remedy. However, intent to breach a covenant can justify an injunction without needing to show imminent harm. The restrictive covenants required written approval from the homeowners' association (HOA) for any construction, which Clark and Martin failed to obtain for their fence and gate, violating the covenants.

Regarding the waiver argument, waiver is identified as the voluntary relinquishment of a known right, typically a question of fact. However, if the facts are clear or undisputed, it becomes a legal question. To establish waiver of a deed restriction, the nonconforming party must demonstrate that existing violations are so extensive that they lead an average person to reasonably conclude the restriction has been abandoned and its enforcement waived.

Key factors for evaluating violations of restrictive covenants include their number, nature, severity, prior enforcement actions, and the feasibility of achieving the covenant's intended benefits. A nonwaiver provision in Section 1(D) prevents claims of waiver or abandonment of the covenants, maintaining that invalidation or non-enforcement of any restriction does not affect the validity of others. A nonwaiver clause can only be deemed ineffective if complete abandonment of all restrictions, including the nonwaiver provision, is demonstrated, typically requiring pervasive violations that undermine the neighborhood's character. In this case, Clark and Martin failed to address the nonwaiver provision or prove that the neighborhood's fundamental character had been destroyed, thereby negating their waiver defense as a matter of law. 

Regarding their quiet title claim, Clark and Martin did not present distinct arguments that would differentiate it from previous discussions on the enforceability and waiver of the restrictive covenants. The elements of a quiet title action require showing an interest in property, the impact of the defendant's claim on that title, and the invalidity of the claim. Their previous arguments effectively resolved this issue without introducing new claims.

Additionally, Clark and Martin challenged the determination of tortious interference elements, which require intentional interference with property rights causing damage without just cause. However, they did not demonstrate any harm related to this claim, as the trial court's final order did not address tortious interference, nor did appellees seek economic damages based on this theory. The nature of appellees' claims was inferred to be an attempt to enforce the restrictive covenants, despite not being explicitly stated, and pleadings should be interpreted liberally in favor of the pleader.

Clark and Martin argue that the trial court correctly dismissed their tortious interference with use of property claim, as it is not contested by the appellees, and cite a case establishing that intentional interference with inheritance is not recognized in Texas. They also assert that the issue of attorney’s fees should have been submitted to the jury, as the reasonableness of fees is typically a factual question. However, they failed to preserve this issue for appeal, as they did not raise it during the trial or object to the bench trial on fees. Consequently, any denial of their jury trial rights was deemed non-reversible.

In a second argument, Clark and Martin claim that the appellees waived their tortious interference claim and requests for a permanent injunction and attorney’s fees by not including them in the jury charge. The court determined this argument was inapplicable, as the trial court had addressed the claims, which were established as a matter of law.

Clark and Martin also contend that the final judgment should be reversed due to alleged flaws in the pleadings and rulings contrary to Texas law, reiterating their argument regarding the waiver of restrictive covenants, which had already been rejected. They assert harmful error stemming from the trial court's failure to provide findings of fact and conclusions of law in response to their request. The appellate court recognizes this as error, presumed harmful unless the record shows no harm to the complaining party. Clark and Martin request a review of the entire record or an abatement for the trial court to issue the requested findings and conclusions.

An appellate court typically directs a trial court to address missing findings when the absence of those findings is deemed harmful to the appellant. An appellant is generally considered harmed if they are left to guess the reasons behind the trial court's decision. In this case, Clark and Martin did not demonstrate how they were harmed by the trial court's failure to provide findings and conclusions, nor did they indicate that they had to speculate about the court's reasoning. The appellate court found that the lack of findings did not impede its ability to evaluate the appeal, thus abating the appeal for further findings was unnecessary.

Clark and Martin challenged the trial court's declaratory judgment favoring the appellees regarding the restrictive covenants and the existence of a Homeowners Association (HOA), arguing that these matters were not pleaded or proven by the appellees, as per Texas Rule of Civil Procedure 301. However, Clark and Martin had themselves sought a declaratory judgment asserting that the restrictive covenants were void and that they had the right to construct a fence and gate, claiming the absence of an HOA. They contended there was no evidence supporting the HOA's existence, asserting it dissolved after the Architectural Control Committee (ACC) automatically terminated.

Despite their claims, the record supported the existence of an HOA, which was automatically created under the restrictive covenants upon the sale of all lots. Evidence, such as bills sent by Martin on behalf of the HOA, indicated its ongoing operation. Additionally, Clark and Martin's assertion that the HOA did not comply with non-profit and property association requirements was unfounded, as the covenants did not impose such formalities. They also failed to prove that the cited statutes were relevant to their case involving a small HOA.

Lastly, Clark and Martin argued against the trial court's permanent injunction, claiming it was unsupported by the pleadings, rulings, and evidence. They raised several reasons for this contention, but these arguments largely reiterated points previously dismissed by the court, such as the alleged waiver and the nonexistence of the HOA.

Clark and Martin argue that the prohibition against a gate across the common access drive should have specified that such a gate would violate restrictive covenants. However, they did not reference the record to support this claim or file post-judgment motions, leading to a waiver of this argument on appeal. They also contend that the appellees did not explicitly request the removal of the existing fence; however, the appellees’ application for injunctive relief sought a permanent injunction against the installation of a gate and included a request for fence removal. 

Clark and Martin further assert that the permanent injunction lacks specificity and is overly broad, but they failed to raise these issues in the trial court, which also constitutes a waiver. Additionally, they claim that the appellees were not entitled to a permanent injunction due to a lack of a finding of liability on the underlying tortious interference claim. They argue that injunctive relief requires a finding of liability, but the court found that a legal action for violation of the restrictive covenants existed, making injunctive relief appropriate.

Clark and Martin maintain that their actions were not wrongful because the covenants do not explicitly prohibit the gate or fence. They reference sections of the covenants regarding utility easements and common areas but overlook provisions requiring HOA approval for constructing a fence or gate, which they did not obtain. They argue that the construction permissions in the covenants are void due to the alleged absence of an HOA. However, evidence indicates that Martin acted on behalf of the HOA in financial matters. Lastly, Clark and Martin argue that Texas law allows for a gate in the access easement, but this does not negate the requirement for HOA approval stated in the restrictive covenants.

Two cases regarding express easements and the construction of gates are distinguishable from the current matter because they did not involve restrictive covenants. The covenants in question prohibit gates or fences without HOA approval. Clark and Martin argue against the appellees' entitlement to injunctive relief, claiming a lack of evidence for "irreparable injury" or inadequate remedy; however, Texas law does not require proof of irreparable injury in such cases. The trial court's admission of testimony regarding lost home value is deemed irrelevant to the need for showing injury.

Regarding attorney's fees, Clark and Martin assert that the trial court erred in awarding these fees, arguing that the jury should have determined the issue and that the fees were not properly segregated. Texas law mandates that attorney’s fees can only be recovered when authorized by statute or contract, necessitating segregation of recoverable and non-recoverable claims. Although opposing counsel did not segregate fees, the appellees’ lawsuit aimed to enforce restrictive covenants, which included provisions for legal fees. Clark and Martin's claim that appellees did not prevail on a tortious interference claim is countered by the fact that appellees successfully enforced the restrictive covenants. Furthermore, the appellees did plead for attorney’s fees under the restrictive covenants in their application for injunctive relief, which is critical because mandatory attorney's fees are awarded in these cases. Lastly, Clark and Martin's assertion that appellees failed to prove incurred attorney's fees is inadequately supported as they provided no legal authority for this claim.

A brief must include proper citations to legal authorities according to TEX. R. APP. P. 38.1(i). In Texas, proof of fees actually incurred is not necessary for recovering attorney’s fees. Clark and Martin contended that appellees were not entitled to fees due to a lack of actual damages, relying on Gulf States v. Low, where the plaintiff could not demonstrate actual damages under the DTPA, thus forfeiting entitlement to attorney’s fees. However, in the present case, appellees successfully enforced the covenants and obtained an injunction, which distinguishes it from Gulf States. The attorney's fee provision in the contract mandated that Clark and Martin, the homeowners violating the covenants, pay fees to the enforcing party. The court rejected Clark and Martin’s argument and affirmed the trial court's final order, ruling that appellees are entitled to recover their appeal costs from the appellants. Judgment was entered on August 26, 2019.